Buddenberg v. Weisdack

• Decision Date: 20 September 2019
• Docket Number: No. 18-3674,18-3674
• Citation: 939 F.3d 732
• Parties: Rebecca BUDDENBERG, Plaintiff-Appellee, v. Robert WEISDACK, et al., Defendants, James Budzik, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

939 F.3d 732

Rebecca BUDDENBERG, Plaintiff-Appellee,

v.Robert WEISDACK, et al., Defendants,James Budzik, Defendant-Appellant.

No. 18-3674

United States Court of Appeals, Sixth Circuit.

Decided and Filed: September 20, 2019

ON BRIEF: Monica A. Sansalone, Timothy T. Brick, GALLAGHER SHARP LLP, Cleveland, Ohio, for Appellant. Subodh Chandra, Donald P. Screen, Sandhya Gupta, Patrick Kabat, THE CHANDRA LAW FIRM LLC, Cleveland, Ohio, for Appellee.

Before: MERRITT, MOORE, and WHITE, Circuit Judges.

HELENE N. WHITE, Circuit Judge.

In this interlocutory appeal, Defendant-Appellant James Budzik seeks reversal of the district court’s denial of his motion to dismiss based on qualified immunity. Plaintiff-Appellee Rebecca Buddenberg, formerly the fiscal coordinator for the Geauga County, Ohio, Health District, alleges that she was retaliated against by her supervisor for reporting ethical violations she observed. Budzik served as outside legal counsel for the Health District during the relevant time period, and allegedly facilitated and contributed to the acts of retaliation. Accepting as true the factual allegations in Buddenberg’s complaint, she has plausibly alleged violations of her clearly established First Amendment rights. We therefore AFFIRM.

I.

Rebecca Buddenberg began working at the Geauga County Health District on February 2, 2015. (Second Amended Complaint, R. 31, PID 366 ¶ 11.) In her role as fiscal coordinator, Buddenberg was responsible for certain aspects of the Health District’s fiscal management, including processing payroll and accounts payable, preparing fiscal reports, and contributing to the department budget process. (Id . ¶ 12.) Buddenberg also performed various human-resource functions, including "maintaining personnel records, overseeing FMLA processes, and acting as the liaison for employee-benefits coordination and injury-reporting between the department and the County Commissioners." (Id . ¶ 13.) Her duties did not include reporting internal ethical violations or allegations of discrimination to the Board of Health. (Id . ¶ 14.) Defendant Robert Weisdack, Health Commissioner of Geauga County, was Buddenberg’s immediate supervisor until roughly April 2016, when Dan Mix became her supervisor. (Id . ¶ 15.) Buddenberg then reported to Mix, who reported directly to Weisdack. (Id . ¶ 16.)

Early in her tenure, Buddenberg received positive performance reviews from both Weisdack and Mix. Four months after she started, Weisdack gave Buddenberg a glowing review: "I consider Rebecca a professional-minded person"; "Rebecca shows she [is] very ethical"; "Rebecca’s attitude is great and has a lot of motivation"; "Rebecca is very genuine in her desire to do more and has great initiative." (Id . at PID 367 ¶ 17.) Mix gave Buddenberg a similarly positive review the next year. (Id . ¶ 19.)

Beginning in fall 2016, Buddenberg became aware of several possible ethical violations by Weisdack. Buddenberg learned that the Health District had obtained a state grant for tire removal, and, "in the absence of competitive bids, Mr. Weisdack, along with two Health District sanitarian workers, themselves began to undertake the work." (Id . at PID 96 ¶ 21.) Buddenberg was concerned that Weisdack’s independent work represented a conflict of interest, as he "was holding meetings during the day about the evening work activities ... all without seeking Board approval for any contracts." (Id . at PID 368–69 ¶ 23.) Buddenberg and Mix informed Weisdack that his work as an independent contractor would require approval from other local officials, but Weisdack ignored them. (Id . ¶ 21–22.)

Around the same time, Buddenberg approached Weisdack about an apparently sex-based pay disparity between two employees within the Health District. (Id . at PID 369 ¶ 24.) When she broached the issue with him, Weisdack "disparaged [Buddenberg], telling her that she wasn’t a lawyer, that he knew what he could do, and that he had already forgotten more that morning than she could ever learn in a lifetime." (Id . ¶ 25.)

Buddenberg then reported Weisdack’s potential conflict of interest and the disparate-pay issue to the Board of Health at a meeting on October 24, 2016. She also voiced other concerns about unethical conduct by Weisdack, such as accepting gifts from contractors to whom the Health District issued permits, ignoring Buddenberg’s suggestion to install GPS units in agency vehicles to ensure proper use of department resources, failing to enforce attendance and break policies, failing to honor the reference-check policy for new hires, and disregarding the recommendations of the employees’ health-and-safety committee. (Id . ¶ 26.)

Within forty-eight hours of her report to the Board of Health, Weisdack instructed Mix to change Buddenberg’s work schedule. (Id . at PID 372 ¶ 33.) Buddenberg had always maintained a flexible schedule that allowed her to take college classes and help take care of her grandson. (Id . ¶ 33.) As a result of Weisdack’s order, Buddenberg was forced to quit school and "became limited in her ability to take care of her grandson." (Id .) Mix believed that Weisdack’s decision to change Buddenberg’s schedule was in retaliation for Buddenberg’s report; he texted Buddenberg, "he was mad at you for going to [the] board ... He told me to get rid of you." (Id . ¶ 36.) Two other employees continued to enjoy a flexible schedule, suggesting that Buddenberg was targeted by Weisdack. (Id . ¶ 35.) Mix also noted a change in Weisdack’s behavior after the October 24, 2016 meeting. In a statement to the board, Mix wrote, "He became dictator-like in his dealings with staff. Since that date Bob has spent most of his energy intimidating staff members, instilling a[ ] sense of fear, and aligning staff members against one another." (Id . ¶ 39.)

Buddenberg continued to report Weisdack’s conduct to the Board. From October 31, 2016 to February 1, 2017, Buddenberg wrote multiple emails to several members of the Board of Health and to the Board’s attorney in which she detailed Weisdack’s ongoing acts of retaliation. (Id . at PID 374–376.) Despite her reports, the Board failed to intervene. Indeed, on November 29, 2016, the Board renewed Weisdack’s contract. (Id . at PID 377 ¶ 51.) In January 2017, Mix was forced to resign. (Id . at PID 380–81 ¶ 62.) On February 15, 2017, having exhausted internal channels of communication, Buddenberg filed a charge of retaliation with the Equal Employment Opportunity Commission (EEOC). (Id . at PID 381 ¶ 67.)

Four days after receiving notice of Buddenberg’s EEOC filing, Weisdack issued a "Notice of Proposed Disciplinary Action" (Notice) against Buddenberg. (Id . at PID 383 ¶ 72.) Weisdack drafted the Notice with the assistance of attorney James Budzik. (Id . at PID 384 ¶ 73.) The Notice alleged that Buddenberg was "rude, unprofessional, and disrespectful"; that she "willfully demean[ed] and verbally abus[ed] the Health commissioner"; that she "ma[de] a false claim in order to obtain a benefit"; that she defied a directive from Weisdack not to transfer "contaminated" furniture from the Maintenance Department to the Health Department; that she incorrectly stored documents in her office; that she failed to complete payroll assignments on time; and that she shredded documents without authorization. (Id . at PID 383–84 ¶ 72.) According to Buddenberg’s complaint, the allegations "skewed facts," were "flat-out lies," or were "downright bizarre and obviously pretextual." (Id . at PID 386 ¶ 81–83.) Also, the Notice "involved conduct for which others were not disciplined." (Id .)

At Buddenberg’s disciplinary hearing on March 3, 2017, "Mr. Budzik played the leading role in grilling Ms. Buddenberg." (Id . at PID 388 ¶ 87.) Budzik was "aggressive and unfair" during the hearing, "aggressively cut[ting] her off when she tried to answer" and "gaslighting" her. (Id . at PID 390 ¶ 91.) Although Buddenberg refuted the charges and provided documentation to explain her position, Budzik was "condescending" and "intimidating." (Id . ¶ 91–92.) At the close of the two-hour hearing, Budzik offered to settle the disciplinary charges if Buddenberg would accept a demotion and a salary reduction of nearly $1,000 per month, and drop all her retaliation claims, including her EEOC charge. (Id . at 391 ¶94.) Buddenberg asked to have a witness present during this interaction, but Budzik refused. (Id .)

Four days later, at a meeting of the Board of Health, Buddenberg asked to make a statement about the disciplinary hearing directly to the Board, but Budzik "stated she could do so only if she agreed to discuss settlement." (Id .) Buddenberg declined. Budzik then recommended that the Board take disciplinary action against her. On March 16, 2017, the Health District issued an order sustaining "nearly all of the bogus allegations" in the Notice, suspending Buddenberg for three days without pay, demoting her to a clerical position, and substantially reducing her pay. (Id . at 392–93 ¶ 99–100.) Budzik and Weisdack drafted the order. (Id . at 393 ¶ 101.)

Buddenberg continued to work under Weisdack for almost two months, but found the work environment intolerable. She resigned on May 27, 2017. (Id . at PID 397 ¶ 128.)

Buddenberg filed her complaint in the Northern District of Ohio, naming Weisdack, the Geauga County Health District, several members of the Board of Health, and Budzik as defendants. (R. 1, PID 1.) She filed an amended complaint (R. 3, PID 90), and a second amended complaint. (R. 31, PID 363.) Buddenberg asserted claims of retaliation under Title VII, 42 U.S.C. § 2000 et seq ., retaliation under the Fair Labor Standards Act, 29 U.S.C. § 215(a)(3), First Amendment retaliation under 42 U.S.C. § 1983, and various state-law causes of action.

Budzik filed a motion to dismiss. (R. 14, PID 156.) As relevant here, Budzik argued that he was entitled to qualified immunity because Buddenberg’s complaint failed to allege facts establishing a violation of a clearly...